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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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From an IHT standpoint, the overarching purpose of lifetime planning is to arrange an individual’s assets during life so the eventual IHT burden on death is minimised. This can be done in several ways, including putting money into a range of tax-efficient holdings and identifying, securing and augmenting IHT exemptions available and valuable reliefs. A central element of lifetime IHT planning is both gifting during life to significantly shrink the overall estate that will be owned on death, and this Practice Note focuses on that theme. Lifetime IHT planning may equally entail creating or reviewing a person’s Will. Where a strategy blends lifetime transfers with Will structuring, the two strands should not be viewed separately. It is vital to consider the provisions of any Will when lifetime gifts are contemplated, and the converse applies. Even if a client chooses not to...
Psychology of disputes This Practice Note has been prepared from the standpoint of a trusts and estates lawyer, rather than that of a psychologist by training. Common triggers of disputes Most disagreements begin with a triggering event—a shift in circumstances whereby a family member realises that their expectations are no longer matched by the reality of the situation. Death of the family matriarch or patriarch A frequent trigger is the death of the family matriarch or patriarch—the individual who held an esteemed place within the family and accordingly controlled significant personal wealth. When certain relatives discover that their expectations do not accord with the true position, litigation can follow. For example, the deceased’s Will might prefer one child over others, or favour children from a former relationship instead of a later spouse. Where assets are placed on trust, beneficiaries (who may themselves be of mature years) might dislike the...
These ‘how to’ guides outline the actions to take and the issues to address for Private Client practitioners undertaking a range of key tasks in their work. Every guide provides links to further in-depth relevant material. Wills and probate How to verify whether a Will is valid after the testator’s death How to prepare Form IHT400 How to remove a prospective beneficiary from a Will How to finalise an action for proving......
Solicitors are not required to make a clinical diagnosis of someone’s mental condition; however, they do need to be conversant with a range of tests and assessments that are commonly used in practice. A modest understanding of clinical tests can be helpful in day-to-day situations in practice. When considering assessments and tests for individuals who might lack capacity, there are two essential sources of information to consult: the Mental Capacity Act 2005 ( MCA 2005) the Mental Capacity Act 2005 Code of Practice (the Code) When to assess A person’s capacity should be evaluated whenever it is in doubt......
What does this Practice Note cover? This Practice Note provides a straightforward overview of derivatives, concentrating on: what constitutes a derivative documenting and negotiating an over-the-counter ( OTC) derivative the various derivative structures the role of derivatives within lending transactions forms of collateral and credit support used in OTC derivative transactions how derivatives are cleared and settled how derivatives are regulated tax considerations relevant to derivatives, and the resolution of derivatives disputes What is a derivative? A derivative is a financial instrument whose value is derived from an underlying asset, index, rate or reference point. Derivatives transfer risk from one party to another. They can be employed to reduce a party’s exposure to a variable or to obtain exposure to that same variable. A wide range of entities use derivatives, including banks, other investment firms, governments, local authorities, supranational authorities and pension funds. Derivatives are largely traded in the wholesale market, although certain products are also...
STOP PRESS: On 2 December 2025, the Property ( Digital Assets etc) Act 2025 obtained Royal Assent and took effect immediately. Section 1 confirms that an item—including one of a digital or electronic character—may attract personal property rights even if it is neither a thing in possession nor a thing in action. Accordingly, digital holdings such as cryptocurrency, non-fungible tokens and carbon credits qualify as personal property. See LNB News: 04/12/2025 2. This Practice Note is in the process of being revised to mirror this development. Digital assets may outlast incapacity or death. Anyone with a digital device or online account ought to set out arrangements for those assets, irrespective of age. No legislative definition The UK lacks a statutory definition of a ‘digital asset’ and there is no enacted regime regulating a personal representative’s or fiduciary’s access to such assets....
Gifts to Specified Charities When preparing a will that leaves one or more legacies to individual charities, particular care and consideration are essential. The last thing a testator intends, when making a charitable bequest, is for the sum to be diminished by legal costs because, for example, the description and/or the amount stated contained an error. Identification It is, of course, crucial to identify the intended charity precisely: many charities have similar names or comparable purposes verify and cite the official name and charity number (where registered with the Charity Commission) using the charity’s own literature or website, or the Charity Commission’s database—many major charities also provide model clauses that can be helpful confirm and include the current address and, if it is not a national or international charity, the geographical area in which it operates The Law Society Gazette publishes a Charity and...
Following the Government’s response to the Ministry of Justice and Office of the Public Guardian ( OPG) consultation Modernising Lasting Powers of Attorney, Powers of Attorney Bill secured Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 ( PAA 2023). When it is brought into force, PAA 2023 will make changes to the Mental Capacity Act 2005 ( MCA 2005) to deliver an up-to-date lasting power of attorney ( LPA) service. Which provisions of PAA 2023 are currently in force? PAA 2023, s 2 came into force on 18 November 2023 and amended section 3 of the Powers of Attorney Act 1971 to add chartered legal executives authorised by the Chartered Institute of Legal Executives ( CILEX) to the list of professionals authorised to certify copies......
FORTHCOMING CHANGE : In the Autumn Budget 2024 on 30 October 2024, the government revealed plans to include unspent pension pots and pension death benefits within an individual’s estate for IHT from 6 April 2027. This measure will cover both defined contribution and defined benefit arrangements, and will extend to UK-registered schemes as well as qualifying non- UK pension schemes. These rules apply across the entire pensions landscape. A technical consultation on how to deliver these reforms ran between 30 October 2024 and 22 January 2025. The reforms are legislated by the Finance Act 2026 and alter how personal representatives must declare the value of pension death benefits from 6 April 2027. For further details, see: Autumn Budget 2024— Private Client analysis — Inheritance tax. Effect of the grant A grant of probate, or a grant of letters of...
Variation of Will or intestacy after death— Q& As An instrument of variation can be used to alter how a deceased person’s estate is distributed under a Will or on intestacy. It is commonly executed by deed. To secure effectiveness—typically to obtain favourable inheritance tax ( IHT) and capital gains tax ( CGT) treatment under section 142 of the Inheritance Tax Act 1984 ( IHTA 1984) and section 62(6) of the Taxation of Chargeable Gains Act 1992 ( TCGA 1992)—certain formalities must be met. These include that the deed is in writing, contains the requisite statement applying the statutory provisions, is not made for any extraneous consideration, and is signed by all relevant parties, including the deceased’s personal representatives ( PRs) where additional tax would otherwise arise. For guidance on deeds of variation, see Practice Note: Variation of Will or intestacy after death. See also...
At 11 pm ( GMT) on 31 December 2020, the transition period designed to move the UK away from the EU’s legal structures came to a close. That moment (termed in this document ‘ IP completion day’) brought an instant and substantial shift in the UK’s legal framework. This Practice Note sets out the implications of that shift for immigration law and practice. Background European Economic Area ( EEA) and Swiss nationals (referred to here as ‘ EEA citizens’) and their family members previously enjoyed EU free movement rights, principally implemented in the UK by the Immigration ( European Economic Area) Regulations 2016 (the EEA Regs 2016), SI 2016/1052. In accordance with the Withdrawal Agreement between the EU and the UK, and equivalent arrangements with Norway, Iceland, Liechtenstein and Switzerland, these Regulations continued to apply in full for the duration of the...
This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...
Before now, charities were expected to hold exclusive control over their portfolios. The Trustee Act 2000 ( Tr A 2000) opened the door for them to collaborate with fellow charities, private individuals and non-charitable organisations to pool resources for investment. By pooling, a charity can broaden its holdings and, in turn, lessen risk in a comparatively cost-effective way. Pooling can simply form part of a charity’s wider investment plan. The Charities Act 2011 ( CA 2011) strengthened this approach by allowing the Charity Commission to set up common investment funds ( CIFs) and common deposit funds ( CDFs)... Common Investment Fund All charities in England, Scotland, Northern Ireland and Wales may invest in a CIF unless their governing document says otherwise. CIFs are a type of collective investment scheme in which contributors pool cash and the scheme operator then invests across a broad range of assets in line...
The role of personal representatives Applications for reasonable financial provision from an estate under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) appear to be increasing. Consequently, it is more likely that personal representatives ( PRs)—whether executors or administrators—will need to address such a claim during the administration of the estate. This can be challenging, as PRs may feel caught between opposing sides, namely the claimant and the beneficiaries taking under the Will or the intestacy rules. This Practice Note explores the position of PRs in relation to I( PFD) A 1975 claims. Although it is well understood that, when faced with an I( PFD) A 1975 claim, PRs should remain neutral, that approach raises practical queries, such as: how PRs should respond to requests for information from someone threatening to bring an I( PFD) A 1975...
Inheritance tax and personal injury trusts Many advisers mistakenly assume that choosing one form of personal injury trust over another delivers an inheritance tax ( IHT) benefit, with discretionary trusts often singled out. In truth, for a self-settled personal injury trust, the structure chosen makes no difference. The gift with reservation of benefit rules bite, so the trust fund’s value is treated as part of the settlor’s estate for IHT purposes, whether or not it actually falls back into the estate on death. This remains the position even for disabled trusts... From an IHT perspective, a poorly planned personal injury trust can be positively harmful. If an amount exceeding the nil rate band (£325,000 for England and Wales 2025–26) is placed into a relevant property trust—such as a discretionary or life interest trust—that does not qualify as a disabled persons trust, there is an...
Types of personal injury trust How to choose between the different types of trust Consideration of the various personal injury trust options commonly proceeds on the basis that the injured individual has full capacity and acts as settlor. Yet a trust may equally be created by court order, whether during the litigation or once a personal injury claim concludes. In those circumstances, the trust is put in place for the injured person, irrespective of whether their capacity is impaired. Watt v ABC (see Practice Note: The Court of Protection versus personal injury trusts) indicates that such orders can be made either by the court determining the claim and granting the award, or by the Court of Protection, whilst acknowledging that some jurisdictional questions remain unresolved. Although these notes proceed on the footing that the injured person is capable of setting up the trust, the...
The concept of a ‘permanent establishment’ ( PE) The idea of a PE is articulated in Article 5 of the Organisation for Economic Co‑operation and Development ( OECD) Model Tax Convention ( OECD MTC). Article 5 of the UN Model Tax Convention ( UN MTC) adopts a similar, yet broader, approach. In broad terms, a company resident in one territory (the home state) is regarded as having a PE in another (the host state) where it has: a fixed place of business in the host state a dependent agent in the host state acting for it for the UN MTC only, employees or other personnel engaged by the enterprise to deliver services in the host state for periods adding up to six months within any 12‑month period — referred to as a services PE Under Article 7 ( Business Profits) of the OECD MTC, the host...
Alongside the more familiar company voluntary arrangements ( CVAs) and individual voluntary arrangements ( IVAs), insolvency law allows insolvent general partnerships to propose compromise terms to their creditors. Such arrangements are called partnership voluntary arrangements ( PVAs). When considering any proposal of this kind, partners should remember that they remain fully and personally responsible for all partnership liabilities. Accordingly, in the vast majority of cases it is prudent for each partner to put forward an IVA as well, in order to ensure their own position is comprehensively safeguarded. Applicable legislation Part II of the Insolvent Partnership Order 1994 ( SI 1994/2421) ( IPO 1994), as modified by the Insolvent Partnership ( Amendment) ( No 2) Order 2002 ( SI 2002/2708), applies the CVA regime in Part I of the Insolvency Act 1986 ( IA 1986) to insolvent partnerships via a PVA ( IA 1986, s 420). The IPO...
Source and availability Sources Trustees are granted specific statutory powers, chiefly under the Trustee Act 1925 ( TA 1925) and the Trustee Act 2000 ( Tr A 2000), which define their authority......
This Practice Note has been archived and is no longer maintained. Finance Act 2025 ( FA 2025) brings in legislation to abolish the remittance basis of taxation and to replace it with a residence-based regime from 6 April 2025. Adjustments have also been made to overseas workday relief, so that an employee’s entitlement depends on their residence for the relevant tax year and, subject to certain transitional provisions, whether they are eligible for the four-year foreign income and gains regime for that year. For details on these updates, see the following Practice Notes: The abolition of the remittance basis of taxation from 2025–26 Foreign income and gains regime from 6 April 2025 Overseas Workday Relief from 6 April 2025 For the OWR rules that applied before 6 April 2025, see Practice Note: The statutory residence test—overseas workday relief before 6 April 2025 [...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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